Judgment: 2011-03-22 · Court archive

High Court grants leave to challenge deportation decision over Zimbabwe return risk

The court found substantial grounds to challenge the Minister’s assessment of risk to a failed asylum seeker, while leaving the underlying deportation decision unresolved.

High Court · [2011] IEHC 133

Who, what, where, when and why

Who
  • J. M. (Applicant)
What

The court found substantial grounds to challenge the Minister’s assessment of risk to a failed asylum seeker, while leaving the underlying deportation decision unresolved.

Where

Places mentioned in the report

  • Zimbabwe
  • Bulawayo
When

Judgment:

Why

Reasons reported in the judgment

J. M. claimed to be a Zimbabwean national of Ndebele ethnicity and said he had spent a significant time outside Zimbabwe. His earlier asylum claim, based in part on claimed involvement with the Movement for Democratic Change, was rejected after the Refugee Applications Commissioner and Refugee Appeals Tribunal raised credibility concerns. The Minister later refused an application for subsidiary protection and, on 14 May 2010, made the deportation order challenged in these proceedings.

The High Court has granted J. M. leave to seek judicial review of a 2010 deportation decision, on one ground concerning the assessment of risk if he were returned to Zimbabwe as a failed asylum seeker.

In a judgment delivered on 22 March 2011, Ms Justice Irvine said the applicant had established substantial grounds to argue that the Minister for Justice’s conclusions on that risk were unreasonable and unsupported by the material submitted. The ruling grants leave to apply for an order of certiorari; it does not quash the deportation order or decide whether the applicant would face danger if returned.

J. M. claimed to be a Zimbabwean national of Ndebele ethnicity and said he had spent a significant time outside Zimbabwe. His earlier asylum claim, based in part on claimed involvement with the Movement for Democratic Change, was rejected after the Refugee Applications Commissioner and Refugee Appeals Tribunal raised credibility concerns. The Minister later refused an application for subsidiary protection and, on 14 May 2010, made the deportation order challenged in these proceedings.

In submissions seeking leave to remain, the applicant’s solicitor relied on country information and a UK asylum tribunal’s country guidance decision, R.N. v. Secretary of State for the Home Department. The submissions argued that failed asylum seekers who could not demonstrate loyalty to Zimbabwe’s ruling party might face an enhanced risk on return. The Minister’s file memorandum relied on two UK Home Office reports, which briefly addressed failed asylum seekers and referred to returns from South Africa. It did not refer to R.N.

The Minister argued that the applicant had not supplied a specific factual basis connecting general conditions in Zimbabwe to a threat to him, and that earlier credibility findings undermined his claims. The judge accepted that much of the material was general and that the Minister could rely on earlier credibility findings where the same issues had already been determined. She also concluded that the material did not establish a threat to the applicant’s life or freedom based on Ndebele ethnicity alone.

However, the judge was concerned that the Minister’s analysis of risk to returning asylum seekers relied on brief reports focused largely on returns from South Africa, without addressing R.N., which she described as more detailed and relevant to the applicant’s case. The judge noted that the applicant’s Zimbabwean origin, failed asylum-seeker status, time abroad and claimed Ndebele background from Bulawayo had not been disputed in the proceedings.

The sole ground on which leave was granted concerns the reasonableness and evidential support for the Minister’s conclusion about risk on return as a failed asylum seeker, particularly in light of the applicant’s claimed ethnicity and time abroad. The court did not determine the final judicial review or direct what conclusion the Minister should reach.

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